The Minister of Aboriginal Affairs, John Duncan, has resigned over a letter he sent to a Tax Court judge on behalf of a constituent. Earlier this year, the Ethics Commissioner criticized the Finance Minister for making submissions on behalf of a constituent seeking a radio license from the Canadian Radio-television and Telecommunications Commission.
In a recent column Jeffrey Simpson pronounced the rule against Ministers of the Crown lobbying courts and tribunals “a little silly”.
Our system sends people to Parliament to represent and help their constituents. What counts is the transparency with which they help. Clearly, private contact between ministers (or MPs) and courts or tribunals would be grossly wrong, since politicians would have privileged access denied to others.
But if we insist, as apparently we do, that ministers acting as MPs cannot send a public character reference for a constituent or a letter of support to a regulatory tribunal, then we are saying these elected officials cannot help their constituents in this way, although everybody else can.
Further, we are assuming judges and tribunal heads are so corruptible that their judgments would be swayed by a public letter from a minister or MP. If you believe that, you don’t have much faith in either the human condition or the integrity of those making judicial or quasi-judicial decisions.
Of course, there is no “rule” that Minister’s cannot contact a judge or a Tribunal member. It is a guideline or convention. All Ministers and Ministers of State are required to follow Accountability Guidelines:
There are limitations on the ability of a Minister or Minister of State to act on behalf of constituents as far as quasi‑judicial bodies are concerned. Ministers, Ministers of State and their staff may seek information on the status of a matter or other information that is available to the public. …
Ministers must not intervene, or appear to intervene, with tribunals on any matter requiring a decision in their quasi-judicial capacity, except as permitted by statute.
In all cases, even where the Minister or Governor in Council has authorities to send back or overturn decisions once made, it is inappropriate to attempt to influence the outcome of a specific decision of a quasi-judicial nature.
There have been few resignations of federal Ministers for contacting judges or quasi-judicial tribunals about individual proceedings. My limited research came up with two: Jean Charest in 1990 and David Collenette in 1996.
Adam Dodek has, correctly, noted that the guideline is all about the appearance of an attempt to influence a judicial decision. Such attempts can threaten public confidence in the independence of the judiciary.